in the supreme court of the united states...1 no counsel for any party authored the brief in whole...

No. 17-1678 ================================================================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

JESUS C. HERNÁNDEZ, ET AL.,

Petitioners, v.

JESUS MESA, JR.,

Respondent.

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On Writ Of Certiorari To The United States Court Of Appeals

For The Fifth Circuit

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BRIEF OF BORDER NETWORK FOR HUMAN RIGHTS, SAN DIEGO IMMIGRANT

RIGHTS CONSORTIUM, SOUTHERN BORDER COMMUNITIES COALITION, AND TEXAS

CIVIL RIGHTS PROJECT AS AMICI CURIAE IN SUPPORT OF PETITIONERS

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ARLEIGH P. HELFER III STEPHEN A. FOGDALL Counsel of Record SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2430; 2581 [email protected]

Counsel for Amici Curiae

================================================================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

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Identity and Interests of Amici Curiae ............... 1

Summary of the Argument .................................. 3

Argument ............................................................. 8

I. Border Patrol Injustices Against Mexican and Other Citizens Have Occurred in the Past and Will Continue to Occur—Without Redress—if This Court Allows the Fifth Circuit’s Decision To Stand ....................... 8

II. Because Border Residents Are Under the Control of the Border Patrol, They Must Not Be Denied Constitutional Protections ......... 15

III. Cartographic Borders, Which Are Arbi-trary and Unclear, Should Not Determine Where Constitutional Rights End ............. 19

Conclusion ............................................................ 22

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TABLE OF AUTHORITIES

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CASES

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ......................................... passim

Hernández v. Mesa, 137 S. Ct. 2003 (2017) ........................................... 3, 7

Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) ................................. 11

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ............................................... 4

STATUTES AND REGULATIONS

8 U.S.C. § 1182 ............................................................ 21

8 U.S.C. § 1357(g) ........................................................ 17

8 C.F.R. § 235.5(b) (2006) ............................................ 22

BOOKS, ARTICLES, AND OTHER AUTHORITIES

A Culture of Cruelty: Abuse and Impunity in Short-Term U.S. Border Patrol Custody, No More Deaths (2011), http://forms.nomoredeaths.org/ wp-content/uploads/2014/10/CultureOfCruelty- full.compressed.pdf ............................................. 16, 17

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TABLE OF AUTHORITIES—Continued

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A.C. Thompson, Inside the Secret Border Patrol Facebook Group Where Agents Joke About Mi-grant Deaths and Post Sexist Memes, ProPub-lica (July 1, 2019), https://www.propublica.org/ article/secret-border-patrol-facebook-group- agents-joke-about-migrant-deaths-post-sexist- memes ...................................................................... 18

Andrew Kennis, Supreme Court to Decide Fate of Case That Challenges Cross-Border Killings by U.S. Agents, Vice News (Mar. 30, 2016), https://news.vice.com/article/supreme-court-cross-border-killing-patrol-agent-usa-mexico ........ 16

Ayelet Shachar, The Shifting Border of Immi-gration Regulation, 3 Stan. J. C.R. & C.L. 165 (2007) ................................................................. 21, 22

Border Crossing/Entry Data: Query Detailed Statistics, Bureau of Transp. Statistics, https://explore.dot.gov/t/BTS/views/BTSBorder CrossingAnnualData/BorderCrossingTable Dashboard?:isGuestRedirectFromVizportal= y&:embed=y (last visited Aug. 8, 2019) .................. 18

Border Patrol Abuses, Southern Border Commu-nities Coalition (July 2019), http://southern-border.org/border-patrol-abuses/ .............................. 8

Border Patrol Agent Staffing by Fiscal Year, United States Border Patrol (Sept. 19, 2015), https://www.cbp.gov/sites/default/files/documents/ BP%20Staffing%20FY1992-FY2015.pdf ................. 16

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Border Patrol Overview, U.S. Customs and Border Protection (Jan. 27, 2015), https://www.cbp.gov/ border-security/along-us-borders/overview ............ 16

Border People, The University of Arizona Press, http://www.uapress.arizona.edu/Books/bid289. htm (last visited Aug. 8, 2019) ................................ 20

Border Region, United States-Mexico Border Health Commission, https://www.hhs.gov/about/agencies/ oga/about-oga/what-we-do/international-relations- division/americas/border-health-commission/ us-mexico-border-region/index.html .................. 5, 20

Brian Epstein, Crossing the Line at the Border, Need to Know (ON PBS) (Apr. 20, 2012), available at http://www.pbs.org/wnet/need-to-know/security/video-first-look-crossing-the- line/13597/ ............................................................... 12

CBT Border Wait Times, https://bwt.cbp.gov/ (last visited Aug. 8, 2019) ........................................ 18

Dave Rice, 50 Murders by the Border Patrol?, San Diego Reader (Nov. 14, 2016), http://www. sandiegoreader.com/news/2016/nov/14/ticker- 50-murders-border-patrol/# .................................... 12

Deaths and Injuries in CBP Encounters Since January 2010, American Civil Liberties Union of New Mexico (May 19, 2016), available at https://www.aclu.org/sites/default/files/field_ document/may_2016_dead_and_injured_by_ cbp_officials.pdf ................................................... 8, 13

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Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, https://www.ice.gov/287g (last visited Aug. 8, 2019) ........................................................................ 17

Elizabeth Aguilera, No Charges in Border Patrol Shooting Deaths, San Diego Union-Tribune (Aug. 9, 2013) http://www.sandiegouniontribune.com/ news/immigration/sdut-border-patrol-shooting- lamadrid-ramses-border-immi-2013aug09-story. html ............................................................................ 9

Garrett M. Graff, The Green Monster: How the Border Patrol Became America’s Most Out-of-Control Law Enforcement Agency, Politico Magazine (Nov./Dec. 2014), available at http://www.politico.com/magazine/story/2014/10/border-patrol-the-green-monster-112220?o=2 ...... 16

Jason Buch, Mexican Girl Clutched Her Dying Father, San Antonio Express-News (Sept. 8, 2012), http://www.mysanantonio.com/news/local_news/ article/Father-shot-by-border-agent-while-holding- his-3848597.php ....................................................... 10

Jeremy Raff, The Border Patrol’s Corruption Problem, The Atlantic (May 5, 2017), https://www. theatlantic.com/politics/archive/2017/05/not-one-bad-apple/525327/ ............................................ 18

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Jonathon Shacat, Waiting for Answers One Year After Border Shooting, Douglas Dispatch (Mar. 21, 2012), http://www.douglasdispatch.com/ news/waiting-for-answers-one-year-after-border- shooting/article_30e6022e-a49e-5adc-9dcd-2c86a565315c.html ................................................. 13

Joshua Breisblatt, Forum Statement for Record on Fencing, Infrastructure and Technology Border Hearing, National Immigration Forum (May 13, 2015), https://immigrationforum.org/ blog/forum-statement-for-record-on-fencing-infrastructure-and-technology-border-hearing/ ....... 17

Joshua Breisblatt, Two Border Patrol Agents Charged with Murder Highlights the Need for Robust Hiring Standards, Immigration Impact (Sept. 19, 2018), http://immigrationimpact.com/ 2018/09/19/border-patrol-agents-murder-hiring- standards ................................................................. 17

Julianne Hing, 17-Year-Old Killed by Border Pa-trol for Allegedly Throwing Rocks, ColorLines (Jan. 7, 2011), http://www.colorlines.com/articles/ 17-year-old-killed-border-patrol-allegedly-throwing- rocks ........................................................................... 9

Kristina Davis, Border Chief Sued in Rock-Throwing Death, San Diego Union-Tribune (May 13, 2015), http://www.sandiegouniontribune.com/ sdut-border-patrol-chief-fisher-lawsuit-yanez- rocking-2015may13-story.html ............................... 13

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Manny Fernandez, They Were Stopped at the Texas Border. Their Nightmare Had Only Just Begun, New York Times (Nov. 12, 2018), https:// www.nytimes.com/2018/11/12/us/rape-texas- border-immigrants-esteban-manzanares.html ....... 14

Mark Binelli, 10 Shots Across the Border, N.Y. Times (Mar. 3, 2016), http://www.nytimes.com/ 2016/03/06/magazine/10-shots-across-the-border. html ......................................................................... 10

Melissa del Bosque, Federal Officials Investigate Fatal Border Patrol Shootings, Texas Observer (Jun. 18, 2015), https://www.texasobserver.org/ federal-officials-probe-fatal-border-patrol- shootings/ ................................................................. 11

Michael Marizco, Autopsy Suggests Boy Shot by Border Patrol Was Already Down, KJZZ (Feb. 7, 2013), https://kjzz.org/content/6895/ autopsy-suggests-boy-shot-border-patrol-was- already-down ........................................................... 10

Michael Marizco, Border Patrol Shootings Going Unresolved, Fronteras (Oct. 26, 2012), https:// fronterasdesk.org/content/7301/border-patrol- shootings-going-unresolved .................................... 10

More Accounts Emerge Following Deadly Border Shooting, Nogales Int’l (Jan. 6, 2011), http://www. nogalesinternational.com/news/more-accounts- emerge-following-deadly-border-shooting/article_ 998a4971-2351-5f03-a8f3-c43dd1d65cfe.html ......... 9

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Notice to Nonimmigrant Aliens Subject to Be Enrolled in the United States Visitor and Im-migrant Status Indicator Technology System, Department of Homeland Security, 69 Fed. Reg. 482 (Jan. 5, 2004), available at https://www. dhs.gov/xlibrary/assets/usvisit/USVisitnotice 1-5-04.pdf ................................................................. 21

NPR Staff, 50 Years Ago, A Fluid Border Made The U.S. 1 Square Mile Smaller, All Things Considered (Sept. 25, 2014), available at https:// www.npr.org/2014/09/25/350885341/50-yeaqrs- ago-a-fluid-border-made-the-u-s-1-square-mile- smaller (last visited Aug. 7, 2019) ........................... 21

Philip Mayor, Note, Borderline Constitutionalism: Reconstructing and Deconstructing Judicial Justifications for Constitutional Distortion in the Border Region, 46 Harv. C.R.-C.L. L. Rev. 647 (2011) ................................................................ 22

R. Stickney, ACLU Calls for Probe in Border Shooting, NBC San Diego, June 22, 2011, http://www.nbcsandiego.com/news/local/ACLU- Calls-for-Probe-in-Border-Shooting-124372389. html ......................................................................... 13

Rob O’Dell, 7 Times Rock-Throwing Ended in Deadly Force by U.S. Border Patrol Agents, AZ Central (Oct. 12, 2016), http://www.azcentral.com/ story/news/politics/border-issues/2016/10/10/ us-border-patrol-rock-throwing-killing-cases/ 85670112/ ............................................................ 9, 11

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Rob O’Dell, Supreme Court Vacancy Ripples Through Case Involving Cross-Border Shooting of Teen in Mexico by Border Patrol, AZ Cen-tral (Oct. 24, 2016), http://www.azcentral.com/ story/news/politics/border-issues/2016/10/21/ court-jose-antonio-elena-rodriguez-cross-border- shooting-teen-mexico-border-patrol/92490696/ .......... 11

Samantha Schmidt, ‘They Killed my child’: Bor-der Patrol shooting of Guatemalan woman stirs protests, The Washington Post (May 29, 2018), https://www.washingtonpost.com/news/ morning-mix/wp/2018/05/29/why-did-you-kill- my-child-border-patrol-shooting-of-guatemalan- woman-stirs-protests/ ............................................. 14

Sasha von Oldershausen, Crossing Over: For Families Living on Both Sides of the U.S.-Mexico Border, Breaching the Divide Is a Way of Life, Texas Observer (Oct. 10, 2016), https://www.texasobserver.org/candelaria- crossing-over-border/ ............................................... 20

Timothy J. Dunn, José Palafox, “Militarization of the Border,” The Oxford Encyclopedia of Latinos and Latinas in the United States (2005) ................................................................. 16, 18

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IDENTITY AND INTERESTS OF AMICI CURIAE1

Amici are non-profit organizations that advocate for members of the Mexican-American community in Texas and elsewhere in the border region, particularly on border and civil rights-related concerns. Through this work and their interactions with members of the border community, amici can provide important input about the ways in which members of the community are affected by the operations of the United States Bor-der Patrol.

Border Network for Human Rights (“BNHR”) was founded in 1998 for the general purpose of facili-tating the education, organization, and participation of marginalized border communities to defend and promote human and civil rights, and to work to cre-ate political, economic, and social conditions where every human being is equal in dignity and rights. Most of BNHR’s strategies and activities are directed to accomplish four general goals: (1) to strengthen the capacity and organization of impacted border and im-migrant communities to voice their opinions, concerns, and solutions on issues such as immigration and en-forcement; (2) to establish clear mechanisms for border and immigrant communities to engage in permanent dialogues with policymakers and administration at the

1 No counsel for any party authored the brief in whole or in part and no person or entity, other than the amici, their members, or their counsel, made any monetary contribution to the prepara-tion or submission of this brief. This brief is filed with the written consent of all parties pursuant to this Court’s Rule 37.2(a).

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local, state, regional, and national levels; (3) for these communities to educate policymakers, stakeholders, and the public on the need for a comprehensive review and reaffirmation of our immigration laws; and (4) to work with and encourage policymakers to enact and implement effective oversight and accountability mechanisms for enforcement policies and practices at the border and in the interior.

Since 2007, the San Diego Immigrant Rights Consortium (“SDIRC”) has worked to bring together faith, labor, legal and community leaders to advocate for policies that promote the civil and human rights of immigrants. SDIRC comprises more than 40 organiza-tions throughout San Diego County that include lead-ers from the immigrant and refugee communities.

Southern Border Communities Coalition (“SBCC”) brings together more than 60 organizations from San Diego, California, to Brownsville, Texas, and advances the common goal of promoting a safe and strong community for border residents. The coalition was formed in March 2011 as a response to a rash of Border Patrol-perpetrated violence against unarmed border residents and has focused on advocating for bor-der enforcement policies and practices that are ac-countable and fair, respect human dignity and human rights, and prevent the loss of life in the region. SBCC has engaged in advocacy demanding justice for Sergio Adrián Hernández Güereca, Anastasio Hernandez Ro-jas, and several other victims of violence at the hands of federal immigration and border enforcement offic-ers.

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Texas Civil Rights Project (“TCRP”) boldly serves the movement for equality and justice in and out of the courts. They are Texas lawyers for Texas communities, and they use the tools of litigation and legal advocacy to protect and advance the civil rights of everyone in Texas. They undertake their work with a vision of a Texas in which all communities can thrive with dignity, justice, and without fear. In its almost 30 years of existence, TCRP’s efforts have focused on rep-resenting low-income and otherwise marginalized members of society. TCRP’s interest in this case stems from its years-long work on behalf of victims of civil rights violations at the hands of federal agencies, in-cluding the United States Border Patrol, particularly out of TCRP’s border offices. The outcome of this case will have a direct impact on TCRP’s clients and their families.

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SUMMARY OF THE ARGUMENT

This case arises from a United States Border Pa-trol agent’s fatal act of violence against Sergio Adrián Hernández Güereca, an unarmed teenage boy who was playing with friends mere feet from the U.S.-Mexico border. That Border Patrol agent, Jesus Mesa, Jr., standing on the U.S. side of the border, drew his sidearm, fired bullets across the border, and, while Ser-gio sought cover, shot Sergio in the face, killing him. It was, as this Court described, “a disturbing incident re-sulting in a heartbreaking loss of life.” Hernández v. Mesa, 137 S. Ct. 2003, 2007 (2017) (per curiam).

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Significantly, every operative fact—except the im-pact of the bullet that caused the child’s death—oc-curred on U.S. soil: the Border Patrol agent formed the intent; unholstered his pistol; took aim; placed his fin-ger on the trigger; squeezed the trigger; discharged his weapon; and set the irrevocable fatal bullet in flight. Even though all of this happened on United States soil, the District Court held that it did not have jurisdiction over the boy’s parents’ civil rights suit because Sergio was a Mexican citizen who was killed on the Mexican side of the border. A deeply-divided Fifth Circuit Court of Appeals affirmed. This Court, observing that the Fifth Circuit had not had the opportunity to assess Sergio’s parents’ claim in light of the teachings of Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), vacated the judgment and remanded the case to the Court of Ap-peals with instructions to apply Abbasi’s guidance and determine whether a Bivens2 claim would be appropri-ate here.

Sitting en banc on remand, the Fifth Circuit ruled that Sergio’s parents’ claim against Mesa for damages could not proceed because it presented a “new context” and, independently, because “special factors,” including extraterritorial application of Bivens, barred the claim. If allowed to stand, the Fifth Circuit’s decision would mean that, along the United States-Mexico border, vic-tims would have no legal recourse for—and there would be no civil liability deterrent to prevent—the abusive acts of Border Patrol agents, including

2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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specifically any future fatal shootings of innocent by-standers in Mexican territory.

Amici are advocates for persons in the southern border region, which encompasses 2,000 miles of inter-national border bounding four U.S. states and six Mex-ican states and extends 62.5 miles inland into the U.S. and Mexico on either side.3 As such, amici have inti-mate knowledge about the conditions along the U.S.-Mexico border, which have changed considerably since this Court last considered this case. Most significant is the deterioration in the Border Patrol’s treatment of some of the most vulnerable persons in the Americas. The grievous harms inflicted on these individuals are often dismissed as the actions of an apparently ever-increasing number of “rogue” Border Patrol agents. As discussed below, however, the border violence at issue here is, sadly, not unique.

The Fifth Circuit’s decision (and the purported “special factors” it identified as reasons not to extend Bivens) ignores the realities of the region, leaves non-citizens on the Mexican side of the border who are in-jured by federal officers no legal recourse or remedy to redress their injuries, and eliminates a significant de-terrent to federal officer misconduct against individu-als, a core goal of Bivens.

3 Border Region, United States-Mexico Border Health Com-mission, https://www.hhs.gov/about/agencies/oga/about-oga/what- we-do/international-relations-division/americas/border-health- commission/us-mexico-border-region/index.html (last visited Aug. 8, 2019) [hereinafter Border Health Commission].

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Specifically, amici write to highlight three points:

First, Sergio’s death cannot be viewed as an iso-lated incident. Amici are painfully familiar with other tragedies involving Border Patrol abuses with facts disconcertingly similar to Sergio’s. Such tragedies caused by individual agents are not sanctioned by U.S. policy. Neither would the availability of a monetary damages remedy for Sergio’s parents against Mesa raise a challenge to U.S. policy or national security. The common thread among these incidents is that the vic-tims and their families are at once the most vulnerable to Border Patrol abuses and the most powerless to stop them. Deterrence of unconstitutional conduct is the keystone in the Court’s Bivens jurisprudence, which al-lows civil suits for money damages against federal of-ficers. Thus, this Court’s decision will affect not just Sergio’s family, but also other non-citizens injured, raped, abducted, or killed by Border Patrol agents along the entire 2,000 mile length of the border who, absent a Bivens remedy, have no remedy at all, espe-cially if the agents victimized them on the Mexican side of the border.

Second, Bivens claims should be available to those who suffer abusive conduct at the hands of Bor-der Patrol agents. The Constitution should protect res-idents on both sides of the southern border because individuals on both sides are subject to the conse-quences of the constant presence and far-reaching con-trol of the United States Border Patrol, even when agents’ initial actions occur entirely on the U.S. side of the border. To achieve the United States’ goals of

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sealing the border, the Border Patrol’s authority neces-sarily extends into the gray area just beyond the south-ern border into Mexico, allowing U.S. agents to monitor and control residents on both sides of the border. Wher-ever this authority extends, and wherever Border Pa-trol agents act pursuant to their ostensible authority, the Constitution should check Border Patrol agents’ actions and, via Bivens claims, offer a deterrent to pro-tect and compensate their victims.

Third, Constitutional protections should not be limited by cartographic borders. Such borders are ar-bitrary and unclear; they are legal constructs. Carto-graphic borders are neither rational nor practical “bright line” determiners of a person’s Constitutional rights. As Justice Breyer observed, the area around the border is a “limitrophe” area, a liminal frontier region where special legal rules based on practical considera-tions apply. Hernández, 137 S. Ct. at 2009–10.

Amici therefore submit that the Court should con-sider the realities of the border region when deciding Sergio’s case. United States agents should not get a free pass to violate the Constitution so long as their targets happen to be on the other side of the border. Those injured by abusive Border Patrol conduct should be entitled to Fourth and Fifth Amendment protections and to vindicate those protections through claims for compensation for their injuries.

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ARGUMENT

I. BORDER PATROL INJUSTICES AGAINST MEXICAN AND OTHER CITIZENS HAVE OCCURRED IN THE PAST AND WILL CONTINUE TO OCCUR—WITHOUT RE-DRESS—IF THIS COURT ALLOWS THE FIFTH CIRCUIT’S DECISION TO STAND.

Many persons in the border region have suffered at the hands of Border Patrol agents. Between January 2010 and July 2019 at least 90 people have died as the result of an encounter with U.S. border agents. Many more have been brutalized, in some cases causing life-altering injuries, including a minor who was punched in the stomach and a pregnant woman who lost her unborn child after being beaten at a border crossing.4

Some of these victims targeted by Border Patrol agents were attempting to cross the border into the U.S.; others, like Sergio, were not. None should have been subject to lethal force wielded by Border Patrol agents who, under the Fifth Circuit’s decision, would be immune from civil liability. Consider the following examples:

4 Border Patrol Abuses, Southern Border Communities Coa-lition (July 2019), http://southernborder.org/border-patrol-abuses/. In addition to her miscarriage, the woman suffered malfor-mations and is disabled as a result of the Border Patrol beating. Id.; see also Deaths and Injuries in CBP Encounters Since Janu-ary 2010, American Civil Liberties Union of New Mexico, 24 (May 19, 2016), available at https://www.aclu.org/sites/default/files/ field_document/may_2016_dead_and_injured_by_cbp_officials.pdf [hereinafter ACLU Report].

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Ramses Barron Torres. A Border Patrol agent shot and killed Ramses on January 5, 2011.5 He was 17 years old. Border Patrol agents were chasing drug smugglers on the U.S. side of the border when one agent fired a shot that passed through the metal fence into Mexico and killed Ramses.6 The Border Patrol agent who fired claimed Ramses and his friends were throwing rocks at him but Ramses’ friend, who wit-nessed his death, stated that the Border Patrol agent’s safety had not been threatened in any way.7 The Bor-der Patrol agent was not criminally charged.8

Guillermo Arévalo Pedroza. Border Patrol agents killed Guillermo on September 3, 2012, while he was picnicking at a Mexican riverfront park with his wife and two daughters. A Border Patrol boat on the American side of the Rio Grande River, apparently chasing a young man swimming across the river,

5 Julianne Hing, 17-Year-Old Killed by Border Patrol for Al-legedly Throwing Rocks, ColorLines (Jan. 7, 2011), http://www. colorlines.com/articles/17-year-old-killed-border-patrol-allegedly-throwing-rocks. 6 Elizabeth Aguilera, No Charges in Border Patrol Shooting Deaths, San Diego Union-Tribune (Aug. 9, 2013), http://www. sandiegouniontribune.com/news/immigration/sdut-border-patrol- shooting-lamadrid-ramses-border-immi-2013aug09-story.html. 7 More Accounts Emerge Following Deadly Border Shooting, Nogales Int’l, (Jan. 6, 2011), http://www.nogalesinternational.com/ news/more-accounts-emerge-following-deadly-border-shooting/ article_998a4971-2351-5f03-a8f3-c43dd1d65cfe.html. 8 Rob O’Dell, 7 Times Rock-Throwing Ended in Deadly Force by U.S. Border Patrol Agents, AZ Central (Oct. 12, 2016), http://www.azcentral.com/story/news/politics/border-issues/2016/ 10/10/us-border-patrol-rock-throwing-killing-cases/85670112/.

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opened fire onto the Mexican park and killed Guillermo. The Border Patrol agents later alleged that the people in the park had been throwing rocks at them. No criminal charges were brought against Guillermo’s killer.9

José Antonio Elena Rodríguez. In October 2012, in an incident strikingly similar to Sergio’s, an agent shot and killed José when the agent suspected the teen was part of a group throwing rocks.10 José was on a busy Mexican street 40 feet from the border and carrying only a cell phone.11 He was shot as many as seven times, with at least eight additional bullets striking an adjacent wall. An autopsy revealed the youth may have been shot in the back or even after he had already fallen to the ground.12 José’s family brought a case similar to this one in which the United

9 Jason Buch, Mexican Girl Clutched Her Dying Father, San Antonio Express-News (Sept. 8, 2012), http://www.mysanantonio.com/ news/local_news/article/Father-shot-by-border-agent-while-holding- his-3848597.php. 10 Michael Marizco, Border Patrol Shootings Going Unre-solved, Fronteras (Oct. 26, 2012), https://fronterasdesk.org/content/ 7301/border-patrol-shootings-going-unresolved. 11 José was in Nogales, Sonora across from its American counterpart, Nogales, Arizona. Many residents refer to them as a single town of Ambos Nogales meaning Both Nogales. Mark Binelli, 10 Shots Across the Border, N.Y. Times (Mar. 3, 2016), http://www.nytimes.com/2016/03/06/magazine/10-shots-across-the- border.html. 12 Michael Marizco, Autopsy Suggests Boy Shot by Border Patrol Was Already Down, KJZZ (Feb. 7, 2013), https://kjzz.org/ content/6895/autopsy-suggests-boy-shot-border-patrol-was-already- down.

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States Court of Appeals for the Ninth Circuit decided a Bivens claim exists.13 See Rodriguez v. Swartz, 899 F.3d 719, 748 (9th Cir. 2018), petition for cert. filed (U.S. Sept. 7, 2018) (No. 18-309).

Juan Pablo Perez Santillán. A Border Patrol agent shot and killed Juan on July 7, 2012.14 He was standing on the Mexican side of the Rio Grande River acting as a lookout while others swam across. A Border Patrol agent using a long-range rifle with a high-pow-ered scope shot Juan at least five times. The agent claimed to have seen Juan waiving a gun and also re-ported rock throwing, but Juan was holding only a sweat rag when he died.15 The agent was not criminally charged.

Anastasio Hernández-Rojas.16 Border Patrol agents and Customs and Border Protection (“CBP”) agents killed Anastasio on May 28, 2010. He was at-tempting to cross the border to return to his family in

13 Rob O’Dell, Supreme Court Vacancy Ripples Through Case Involving Cross-Border Shooting of Teen in Mexico by Border Patrol, AZ Central (Oct. 24, 2016), http://www.azcentral.com/story/ news/politics/border-issues/2016/10/21/court-jose-antonio-elena- rodriguez-cross-border-shooting-teen-mexico-border-patrol/92490696/. 14 Melissa del Bosque, Federal Officials Investigate Fatal Border Patrol Shootings, Texas Observer (Jun. 18, 2015), https://www.texasobserver.org/federal-officials-probe-fatal-border- patrol-shootings/. 15 O’Dell, supra note 8. 16 The remaining examples are factually different than Ser-gio’s case because they were not cross-border shootings. We in-clude them to bring the Court’s attention to the extent of the problem of cross-border violence abuses by Border Patrol agents.

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San Diego where he had lived for 25 years when Bor-der Patrol agents detained him and beat him with a baton, and CBP agents shocked him with a Taser. An-astasio informed the agents that he wished to file a complaint, and the agents brought him alone to an iso-lated area outside the crossing station.17 The agents later reported that they were then required to subdue Anastasio because he was resisting. However, an ama-teur video of those events recorded the voice of Anasta-sio pleading for help; the eyewitness who recorded the video stated that the agents were beating Anastasio while he was lying prone on the ground, handcuffed and not resisting.18 The autopsy report ruled Anasta-sio’s death a homicide, but the agent was not crimi-nally charged.19

Carlos La Madrid. A Border Patrol agent shot and killed nineteen-year-old Carlos near Douglas, Ari-zona on March 21, 2011. Carlos was driving a car con-taining marijuana when the Border Patrol agents arrived. He attempted to flee across the border into Mexico, but one of the agents fired three shots, striking

17 Brian Epstein, Crossing the Line at the Border, Need to Know (ON PBS), embedded video 4:40–6:05, (Apr. 20, 2012), available at http://www.pbs.org/wnet/need-to-know/security/video- first-look-crossing-the-line/13597/. 18 Brian Epstein, Crossing the Line at the Border, Need to Know (ON PBS), embedded video 4:40–6:05, 7:46–9:38 (Apr. 20, 2012), available at http://www.pbs.org/wnet/need-to-know/security/video- first-look-crossing-the-line/13597/. 19 Dave Rice, 50 Murders by the Border Patrol?, San Diego Reader (Nov. 14, 2016), http://www.sandiegoreader.com/news/ 2016/nov/14/ticker-50-murders-border-patrol/#.

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him in the back and killing him. Carlos posed no threat to the Border Patrol at the time he died; early allega-tions of rock throwing were determined to be un-founded.20

Alfredo Yañez Reyes. A Border Patrol agent shot and killed Alfredo on June 21, 2011. Alfredo and an-other individual were attempting to cross the border near San Diego, California when the Border Patrol spotted them and began a pursuit.21 As with Ramses, Carlos, and initially with Sergio, the agent who killed Alfredo claimed that he had been forced to shoot be-cause rocks had been thrown at him.22 However, it is unknown whether any rocks were thrown at all, nor whether Alfredo was the person who threw anything.23

J.E., M.E., and N.C. Border Patrol Agent Esteban Manzanares abducted a 14-year old, her teenage

20 Jonathon Shacat, Waiting for Answers One Year After Border Shooting, Douglas Dispatch (Mar. 21, 2012), http://www. douglasdispatch.com/news/waiting-for-answers-one-year-after- border-shooting/article_30e6022e-a49e-5adc-9dcd-2c86a565315c.html. 21 Reports say that Alfredo climbed a tree before being shot. Kristina Davis, Border Chief Sued in Rock-Throwing Death, San Diego Union-Tribune (May 13, 2015), http://www. sandiegouniontribune.com/sdut-border-patrol-chief-fisher-lawsuit- yanez-rocking-2015may13-story.html. The tree was on the Mexi-can side of the fence but technically on U.S. soil. Id. 22 The ACLU reported that in at least 9 Border Patrol deaths and one serious injury between January 2010 and May 2016, the Border Patrol alleged that rocks had been thrown at them. ACLU Report, supra note 4, at 25. 23 R. Stickney, ACLU Calls for Probe in Border Shooting, NBC San Diego, June 22, 2011, http://www.nbcsandiego.com/ news/local/ACLU-Calls-for-Probe-in-Border-Shooting-124372389.html.

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friend, and her teenage friend’s mother just after they crossed the Rio Grande and arrived in Texas.24 He drove them to an isolated wooded area where he sex-ually assaulted them and physically brutalized them. After leaving the friend and her mother for dead in the brush, he took the 14-year old to his apartment, where he repeatedly assaulted her before killing himself as the authorities arrived.

Claudia Patricia Gómez González. A Border Patrol agent shot and killed an undocumented 19-year-old woman from Guatemala on the U.S. side of the bor-der, claiming that she and others had attacked him by throwing projectiles.25 However, his story changed as he came under scrutiny. A later Border Patrol report no longer claimed that Claudia was one of the assail-ants and also dropped all mention of thrown objects.26

These examples show that Sergio’s death was not an isolated tragedy. As Border Patrol agents’ abuses of authority increase, Sergio unfortunately will not be the last victim of the Border Patrol’s unfettered control over the borderlands. Under the Fifth Circuit’s deci-sion, those who come after Sergio and their families

24 Manny Fernandez, They Were Stopped at the Texas Border. Their Nightmare Had Only Just Begun, New York Times (Nov. 12, 2018), https://www.nytimes.com/2018/11/12/us/rape-texas-border- immigrants-esteban-manzanares.html. 25 Samantha Schmidt, ‘They Killed my child’: Border Patrol shooting of Guatemalan woman stirs protests, The Washington Post (May 29, 2018), https://www.washingtonpost.com/news/ morning-mix/wp/2018/05/29/why-did-you-kill-my-child-border-patrol- shooting-of-guatemalan-woman-stirs-protests/. 26 Id.

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will have no way of vindicating their Constitutional rights. This approach has the absurd result failing to uphold the fundamental goal of Bivens: deterring fed-eral law enforcement officers from abusing their au-thority.

II. BECAUSE BORDER RESIDENTS ARE UN-

DER THE CONTROL OF THE BORDER PATROL, THEY MUST NOT BE DENIED CONSTITUTIONAL PROTECTIONS.

The tragedies in the borderlands are a product of aggressive American policies aimed at securing the southern border. These policies have sent 17,500 Bor-der Patrol agents to the region, equipping them with guns and the power to effectively control wide swaths of Mexican territory. Sadly, as described above, Sergio’s death is but one example. Sergio was killed on Mexican soil in the deep cement culvert of a dried-up river. On paper, the Border Patrol controls only the area at the top of one side of the culvert, but as this case demon-strates, the Border Patrol agents exert their authority over the entire area. And where Border Patrol agents exercise their authority, those harmed by federal agents’ actions should not be left without recourse.

The growing influence of the Border Patrol began in the 1990s when the United States increased its fo-cus on immigration. The strategy at the border shifted from apprehending individuals who crossed into the United States without permission to preventing any-one from trying, causing the Border Patrol’s focus to

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extend past the border into Mexican territory.27 With this strategy of deterrence came a series of aggressive immigration policies such as Operations Gatekeeper, Safeguard, Rio Grande, and Hold the Line.28

United States Customs and Border Protection is now the largest law enforcement agency in the coun-try.29 There are four times as many agents stationed on the southern border today than there were in 1992.30

27 See A Culture of Cruelty: Abuse and Impunity in Short-Term U.S. Border Patrol Custody, No More Deaths, 42 (2011), https://archive.org/details/pdfy-y1yNVbQxW6lEOI2B [hereinafter A Culture of Cruelty]. The Border Patrol’s primary mission is “reducing the likelihood that dangerous people and capabilities enter the United States between the ports of entry.” Border Patrol Overview, U.S. Customs and Border Protection (Apr. 26, 2018), https://www.cbp.gov/border-security/along-us-borders/overview [hereinafter Border Patrol Overview]. 28 Timothy J. Dunn, José Palafox, “Militarization of the Bor-der,” The Oxford Encyclopedia of Latinos and Latinas in the United States (2005) [hereinafter Oxford Encyclopedia], availa-ble at https://www.uua.org/sites/live-new.uua.org/files/documents/ washingtonoffice/immigration/studyguides/handout4.1.pdf. 29 Andrew Kennis, Supreme Court to Decide Fate of Case That Challenges Cross-Border Killings by U.S. Agents, Vice News (Mar. 30, 2016), https://news.vice.com/article/supreme-court-cross-border-killing-patrol-agent-usa-mexico. 30 There were 16,608 Border Patrol agents stationed at the southern border as of the 2018 Fiscal Year and only 3,555 in 1992. Border Patrol Agent Staffing by Fiscal Year, United States Border Patrol (Mar. 8, 2019), https://www.cbp.gov/sites/default/files/assets/ documents/2019-Mar/Staffing%20FY1992-FY2018.pdf. The rapid growth of Border Patrol agents has caused quality concerns and led to problems with training and supervision. See Garrett M. Graff, The Green Monster: How the Border Patrol Became America’s Most Out-of-Control Law Enforcement Agency, Politico

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Additionally, state and local law enforcement officers join in, enforcing federal immigration law under the power granted in Section 287 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1357(g).31 The in-flux of agents at the southern border and the power they are granted allow the Border Patrol to control the land and people on both sides of the border.

In recent years, abuses by Border Patrol agents have increased as the government has relaxed hiring standards as it struggles to hire enough agents to meet President Trump’s increasing demands for additional agents.32

There is little question that the 15 million people who live in the southern borderlands acutely feel the presence and power of the United States Border Patrol.33 Interactions with Border Patrol agents are

Magazine (Nov./Dec. 2014), available at http://www.politico.com/ magazine/story/2014/10/border-patrol-the-green-monster-112220?o=2. 31 See A Culture of Cruelty, supra note 27, at 43. Under the 287(g) program, U.S. Immigration and Customs Enforcement can enter into a joint Memorandum of Agreement with state and local law enforcement to delegate the authority of enforcing federal immigration laws. Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. Immigration and Customs Enforcement, https://www.ice.gov/287g (last visited Aug. 8, 2019). 32 See Joshua Breisblatt, Two Border Patrol Agents Charged with Murder Highlights the Need for Robust Hiring Standards, Immigration Impact (Sept. 19, 2018), http://immigrationimpact.com/ 2018/09/19/border-patrol-agents-murder-hiring-standards/. 33 Joshua Breisblatt, Forum Statement for Record on Fenc-ing, Infrastructure and Technology Border Hearing, National Im-migration Forum, 1 (May 13, 2015), https://immigrationforum.org/

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inevitable in the border region. A legal crossing takes an average of 45 minutes; almost 500,000 people le-gally cross the southern border each day to work, shop, or visit with friends and family.34 After crossing, Border Patrol agents subject border residents to random checkpoint stops, searches, and interrogations.35 In this context of cross-border life, border residents un-derstand that American border authorities closely monitor their actions. At the same time, a rise in ani-mus and chauvinistic attitudes among Border Patrol agents towards immigrants, when coupled with the in-creasing number of agents on the ground, many of whom the government hired under relaxed standards, are key ingredients in a recipe for abusive, unlawful actions by individual federal agents.36

blog/forum-statement-for-record-on-fencing-infrastructure-and-technology-border-hearing/. 34 Waiting times vary among the different crossing stations, ranging from 0 to 90 minutes. See CBT Border Wait Times (last visited Aug. 8, 2019), https://bwt.cbp.gov/. 192,913,686 train pas-sengers, bus passengers, personal vehicle passengers, and pedes-trians legally crossed the southern border in 2018. Border Crossing/Entry Data: Query Detailed Statistics, Bureau of Transp. Statistics, https://explore.dot.gov/t/BTS/views/BTSBorderCrossing AnnualData/BorderCrossingTableDashboard?:isGuestRedirectFrom Vizportal=y&:embed=y (last visited Aug. 8, 2019). 35 See Oxford Encyclopedia, supra note 28; Border Patrol Overview, supra note 27. 36 A.C. Thompson, Inside the Secret Border Patrol Facebook Group Where Agents Joke About Migrant Deaths and Post Sexist Memes, ProPublica (July 1, 2019), https://www.propublica.org/article/ secret-border-patrol-facebook-group-agents-joke-about-migrant- deaths-post-sexist-memes; Jeremy Raff, The Border Patrol’s

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While amici recognize that some Border Patrol agents carry out their duties responsibly, the Fifth Circuit’s decision upholds a Constitutional loophole that may only increase the likelihood of future abuse. Amici submit that if American policy grants the Bor-der Patrol de facto authority over both U.S. and Mexi-can land, then all citizens within the de facto American-controlled area (both American and Mexi-can) deserve Fourth and Fifth Amendment protec-tions.

III. CARTOGRAPHIC BORDERS, WHICH ARE

ARBITRARY AND UNCLEAR, SHOULD NOT DETERMINE WHERE CONSTITUTIONAL RIGHTS END.

On a political map, the border between the U.S. and Mexico is a sharp black line. The land on one side of that line is one color; the land on the other side is another. But the real world is not so clearly defined. The border cannot be the end-all stopping point for Constitutional protections. In addition to being blurred by the de facto control of the U.S. Border Patrol over parts of Mexico, the cartographic border is especially arbitrary at the southern border where cultural inter-sectionality, policy, and landscape define the limitrophe area.

Corruption Problem, The Atlantic (May 5, 2017), https://www. theatlantic.com/politics/archive/2017/05/not-one-bad-apple/525327/.

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Border residents’ lives are not binary. They do not fit neatly on one side of the border line or the other, so their location in relation to the border at any given time is not a rational determiner of their Constitu-tional rights.37 Many border residents grew up during a time when the border was more like a bridge than a wall; crossing over for a few hours was an unremarka-ble part of life. Communities organically sprang up along both sides of the Rio Grande River without much attention paid to the invisible border. It is not uncom-mon for many who live on one side of the border to gro-cery shop on the other. Today a steel fence and rigid mindset bisect the lives of borderland residents, but 15 pairs of sister cities such as San Diego-Tijuana and El Paso-Ciudad Juarez still flourish as symbiotic commu-nities.38 Under the Fifth Circuit’s decision and its rul-ing that “extraterritoriality” is a special factor against extending Bivens, border residents who are part of

37 “While the U.S.-Mexico borderlands resemble border re-gions in other parts of the world, nowhere else do so many mil-lions of people from two dissimilar nations live in such close proximity and interact with each other so intensely.” Border People, The University of Arizona Press, http://www.uapress. arizona.edu/Books/bid289.htm (last visited Aug. 8, 2019). 38 See Border Health Commission, supra note 3. Another ex-ample is the community spread between Candelaria in Texas and San Antonio del Bravo in Mexico. For generations, families have lived on both sides of the river and “[m]any people in Candelaria view the two towns as one, with a river running through it.” Sasha von Oldershausen, Crossing Over: For Families Living on Both Sides of the U.S.-Mexico Border, Breaching the Divide Is a Way of Life, Texas Observer (Oct. 10, 2016), https://www.texasobserver.org/ candelaria-crossing-over-border/.

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the same community are treated differently due to an arbitrary, fluid, and invisible line that has moved as the Rio Grande has shifted.39

Additionally, cartographic borders should not de-fine where Constitutional protections exist because the United States frequently ignores or redefines its borders to further its immigration policies.40 Under Section 212 of the Immigration and Nationality Act, 8 U.S.C. § 1182, for example, individuals who cross the border without permission are treated as if they never actually crossed the border, despite standing on, and in some cases residing on, United States land.41 Addi-tionally, the United States creates “polka-dot borders” in places like foreign airports where United States officials can collect information from non-citizens un-der the US-VISIT program.42 In a similar vein, the

39 The border has shifted as the Rio Grande has shifted, in-cluding in the location where Agent Mesa killed Sergio. See NPR Staff, 50 Years Ago, A Fluid Border Made The U.S. 1 Square Mile Smaller, All Things Considered (Sept. 25, 2014), available at https://www.npr.org/2014/09/25/350885341/50-yeaqrs-ago-a-fluid- border-made-the-u-s-1-square-mile-smaller (last visited Aug. 7, 2019). 40 See Ayelet Shachar, The Shifting Border of Immigration Regulation, 3 Stan. J. C.R. & C.L. 165, 177 (2007) (“[D]ecoupling of legal authority from the geographic borders of the nationstate” extends the state’s power “far away from [its] own geographical boundaries”). 41 See id. at 171. 42 See id. at 174–75; see also Notice to Nonimmigrant Aliens Subject to Be Enrolled in the United States Visitor and Immigrant Status Indicator Technology System, Department of Homeland Security, 69 Fed. Reg. 482, 482 (Jan. 5, 2004), available at https://www.dhs.gov/xlibrary/assets/usvisit/USVisitnotice1-5-04.pdf;

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Immigration and Nationality Act allows immigration officers to search ships in foreign ports before they travel to the United States “as though made at the destined port-of-entry in the United States.”43 As these examples illustrate, a cartographic test for Con-stitutional protection, like the one applied by the Fifth Circuit, makes little sense in the border region.

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CONCLUSION

The residents of the border community—Ameri-can citizens and foreign nationals alike, whether lo-cated on one side of the border or the other—deserve certain basic Constitutional protections from abusive acts of federal agents. At bottom, the fortuity of where an aggressor and victim happen to find themselves with respect to an invisible and arbitrary line should

Philip Mayor, Note, Borderline Constitutionalism: Reconstructing and Deconstructing Judicial Justifications for Constitutional Dis-tortion in the Border Region, 46 Harv. C.R.-C.L. L. Rev. 647, 668 (2011) (using the term “polka-dot borders”). 43 8 C.F.R. § 235.5(b) (2006); see also Shachar, supra note 40, at 176.

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not determine whether the victim’s Constitutional rights are protected.

Respectfully submitted,

ARLEIGH P. HELFER III STEPHEN A. FOGDALL Counsel of Record SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2430; 2581 [email protected]

Counsel for Amici Curiae

August 9, 2019

in the supreme court of the united states...1 no counsel for any party authored the brief in whole...

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